[00:00:05] Speaker 00:
Good morning, ladies and gentlemen. Welcome, Judges Bumate and Paez, and I welcome you to the Ninth Circuit. We have a number of, I think we have three cases on for argument today, and we have a number of submitted matters. I'm just going to submit the submitted matters. I'll handle those previously at first, and then we'll go into the other, and then I'll explain the other, how we handle oral argument. So let's see, we've got...

[00:00:36] Speaker 00:
Remus Cosman Mihai and Laura Mihai versus Todd Blanche, 25-3097. That's been submitted on the briefs and will be submitted as of this date.

[00:00:47] Speaker 00:
Carissa Boisvert versus Experian, 25-5387, submitted on the briefs, submitted as of this date.

[00:00:57] Speaker 00:
And then we have the other matters for argument. And so generally I will call them in the order that they're on the calendar. And by your case, you have a certain time period. And if you are the appellant, that includes your rebuttal time as well. That would be your total time. For example, in the first case, it's 10 minutes each side. So the appellant would have 10 minutes total. And if you wish to reserve any time for rebuttal aspirationally, It's your responsibility to keep track of your time, but if you tell me how much time you would like to reserve, I'm looking at the clock, and I'll try to remind you.

[00:01:34] Speaker 00:
The clock counts down, then it goes up, and that doesn't mean I gave you extra time. It means you moved into overtime. But I understand that everyone came here to say something, and we hope you get to say that, but we also have questions, and we have to decide your case. So if your time has run out and one of the panel members here is asking you a question, you don't need to ask permission to proceed. Answer any questions that we have.

[00:02:04] Speaker 00:
As long as my colleagues have questions, please continue to answer those questions. Now, I know we have a couple of – we have – well, UCI, I guess, is here on two different cases, and you're the appellees in those cases.

[00:02:20] Speaker 00:
So that would be your total time, and I notice on each of those cases you have designated on the calendar how much time each person would like to take. And so one thing that I – when people divide time, I will tell you that – If you're the first person and you're going on and then the judges are asking you questions and you go over, I look at the second person thinking like, oh, my gosh, they're taking up all my time. Should I leap to the podium and pull them down or what should I do?

[00:02:54] Speaker 00:
As long as we're asking questions of the first person, the second person will get their time. So you don't need to be concerned about that. But otherwise, if you are the first person, Please be respectful if we're not asking you questions, conclude at the time, or I'll call the time on that. This has kind of been our week for law students, so we love that. And it's been, and also pro bono, we're happy for everyone that comes, and thank you all for your argument here today.

[00:03:24] Speaker 00:
I WOULD LIKE TO ON BEHALF OF THE PANEL THANK IN ADVANCE THOSE INDIVIDUALS THAT ARE DOING PRO BONO WORK BECAUSE THROUGH OUR PRO BONO PROGRAM IT'S ALWAYS HELPFUL TO US IN DECIDING THOSE CASES TO HAVE THEM BE WELL BRIEFED AND If your students here doing it, don't worry. Everyone's always nervous when they have oral argument. Anyone that's not nervous is probably lying to you. So nervous can be a good thing because it means what you're doing is important and it makes you more prepared.

[00:03:56] Speaker 00:
So we thank you for being here. And the first matter is Alex Romero Medrano, 24-6346.

[00:04:07] Speaker 00:
And each side has 10 minutes. And by the calendar, I see that the, it's my understanding the supervising attorney is Peter Afrasiabi. Is that correct? Okay. And so you are here supervising two students, Victor Bao and Carlos Fairbanks, whom we've given permission to argue today. Is that correct? And then we also have, I'm guessing, Mr. Barrett? Yes, Your Honor. All right. Thank you.

[00:04:38] Speaker 00:
And so I think we're ready to proceed.

[00:04:42] Speaker 03:
Good morning. Good morning, Your Honors. May it please the court. I'm Daniel Barra representing Sergeant Roberts and Officer Acosta, both of whom are entitled to summary judgment unless their conduct violates clearly established law.

[00:05:00] Speaker 03:
Mr. Medrano, even with the expert assistance of Mr. Afriabese and his law students, and they did a fantastic job on that appellee brief, but they couldn't find any case that meets the strict requirements of the most recent Supreme Court case, Zorn versus Linton, as to a case that will clearly establish that these officers not only violated the Constitution, but violated clearly established law.

[00:05:31] Speaker 05:
Why doesn't Robinson establish, you know, we said pretty clearly in Robinson you can't point a gun at somebody's head. They didn't put their guns to his head.

[00:05:44] Speaker 03:
I said point. They pointed their guns 10 to 20 feet away, but Robinson had clearly different facts in that Mr. Robinson, who was suspected.

[00:05:54] Speaker 05:
The point of the case was that they pointed, you know, the claim was that they pointed a gun at his head.

[00:05:59] Speaker 03:
That was the point.

[00:06:00] Speaker 05:
That's the whole case.

[00:06:02] Speaker 03:
The whole case is the facts that led up to that. The facts that led up to that was that he was suspected of at most a misdemeanor of using a shotgun. He approached the police officers parked outside of his house, not carrying a shotgun, unbuttoned shirt, walked up to them. He was an ex-police officer, so he knew the drill. The police officers came up to him and aimed a gun at him.

[00:06:26] Speaker 00:
He was an ex-police officer?

[00:06:27] Speaker 03:
Yes.

[00:06:28] Speaker 00:
Who was?

[00:06:29] Speaker 03:
Mr. Robinson, the plaintiff in Robinson.

[00:06:31] Speaker 00:
Oh, Robinson. Okay, you're talking Robinson. You're not talking our particular case.

[00:06:36] Speaker 00:
So here's, and I'm going to sort of give a heads up, the area that I want to explore, both for you and for your friends on the other side that will be arguing. Because here's that if...

[00:06:51] Speaker 00:
Obviously, I want you to articulate what was in the officers' minds at the time that they were making this. But my concern is that if that what the district court, if it were to stand, what the district court is basically telling officers, if you're in fear of your safety, that you can't you can't make a felony sort of arrest type of situation.

[00:07:22] Speaker 00:
So if the case were to stand, then every situation where the officer feels that they have information that they believe the person is dangerous and they have to do sort of a high-risk type of thing, that they can't draw their guns. So it concerns me that it may stand for that proposition the way that it is. I don't know that that can be right because we don't know. I think the officers would have to have some discretion going out when they're stopping people that they think are dangerous. Now, I mean, it might be a different situation if you put the gun in their ear or you put it to their actual head, but, you know, I've seen a lot of cases throughout, and when officers are making stops and they're worried about it, they go out guns drawn until they can control the situation.

[00:08:09] Speaker 00:
So why don't you tell me what the officers, what they knew, what was in their mind?

[00:08:14] Speaker 00:
I don't think this is a great area, but I don't think the officers ever said that the area was something that was in their mind.

[00:08:22] Speaker 03:
They did say, Your Honor, that the area was something that was in their mind. They both submitted... Where did they say that?

[00:08:28] Speaker 00:
I know it's in the briefs, but I didn't... Where in the record did the officers say... Is it Bell Garden or somewhere where we were?

[00:08:35] Speaker 03:
It is Bell Gardens. They both submitted declarations. They're pretty much identical on what they considered, so I'll read from Officer Acosta's declaration at page 156 of the excerpts of record, paragraph 10.

[00:08:49] Speaker 03:
Due to Medrano's history with BGPD, his flight from officers, his fugitive status, the pending felony drug charges, his known gang affiliations, the presence of an unknown dog in the backyard... The fact that Medrano had not been searched for weapons, as well as the time, evening, and location, high crime area, Officer Roberts and I contacted Medrano with guns drawn for officer safety and commanded him to approach our position. In terms of where the gun was pointed, well, first we had him point them over a six-foot fence, So there's only so many places they could point them.

[00:09:25] Speaker 03:
In fact, I think Mr. Medrano, in his testimony, says, they must have been pointing them at my head because they were pointing them over the fence. And in terms of pointing them at the head as opposed to center mass or someplace else, I'm not sure how significant that is because if you point a gun Anywhere in somebody's body, there's the possibility of killing them. That they could shoot you.

[00:09:45] Speaker 04:
That was my question. Is it a difference? I mean, it seems like the district court made a difference between pointing at the head versus center mass. Is that right? And why would that make a difference?

[00:09:55] Speaker 03:
It only seems to make a difference, Your Honor, in those cases where the gun is put right at somebody's head, such as the Thompson case.

[00:10:04] Speaker 04:
At close range, right? Was that at close range?

[00:10:07] Speaker 03:
Yes. There are a certain... Recurring themes in these cases where pointing a gun at somebody's head or other body is found to be excessive. The person has already been searched. The person is under guard, as in Thompson. Prolonged holding them at gunpoint after the possibility of threat has disappeared. Holding the gun barrel to their head and threatening to kill them, as in Thompson.

[00:10:33] Speaker 03:
Minor misdemeanor or no crime suspected. The person is handcuffed.

[00:10:39] Speaker 00:
the person as a child, or the person as in... Does it matter that the warrant here had, in fact, been recalled, but the officers don't know that? I guess that's undisputed. They still believe it's outstanding.

[00:10:52] Speaker 03:
It does not matter, Your Honor, because the CLETS, which they checked beforehand, which is in the record, showed that the warrant was still out there. And... they were certainly entitled to believe that even if it was a mistake.

[00:11:09] Speaker 05:
Sure. Let me see if I can. Maybe it's just a clarification of the record for my benefit.

[00:11:17] Speaker 05:
So they arrive at the scene, right? Yes. And they see him on the other side of the fence in the yard. Yes. Is that correct? And as they get out of their van or their cars, they pull out their guns and they point them, correct? Correct.

[00:11:34] Speaker 03:
They get out of their cars. They see he's gone into his backyard. They go along the neighbor's driveway.

[00:11:45] Speaker 03:
Down that driveway from the photos.

[00:11:47] Speaker 05:
They go down that driveway with their guns.

[00:11:51] Speaker 03:
They pull out their guns, and then they command him to approach them.

[00:11:55] Speaker 05:
So he's on the other side of the fence, though.

[00:11:57] Speaker 03:
Right.

[00:11:58] Speaker 05:
Okay, and they say, we need you on this side.

[00:12:01] Speaker 03:
Right.

[00:12:02] Speaker 05:
Or whatever they say.

[00:12:03] Speaker 03:
I don't know whatever they said to him. Exactly what they say is it did the record, and he didn't recall.

[00:12:08] Speaker 05:
Right. But they tell him to come over.

[00:12:10] Speaker 03:
Right. So he climbs over the fence? Steps on a pallet of building materials, climbs over the fence. They keep the guns trained on him.

[00:12:16] Speaker 05:
Okay, when they see him go over the fence, did they see any gun or any weapon or anything? They did not, but they didn't know that there wasn't one. Well, but how was he using his hands to get over the fence?

[00:12:26] Speaker 03:
They don't know if he's going to use his hands.

[00:12:28] Speaker 05:
I'm asking you, what did they see him do when he came over the fence? Climb over the fence. Using his two hands, correct? And did he have anything in his hands when he went over the fence? No.

[00:12:39] Speaker 05:
Does it mean he didn't have something on him? No, I understand that.

[00:12:42] Speaker 05:
But by that time, let me ask you, by that time, how close were the cops to him and the fence?

[00:12:49] Speaker 03:
Since they were 10 to 20 feet away from him when he was in the In the yard, he would be maybe six feet away when he climbed over the fence, five to six feet away.

[00:13:00] Speaker 03:
And still close, and they would, under the command of cases such as Mueller v. Mena and Lasser v. Kennedy. Let me ask you this.

[00:13:09] Speaker 05:
At what point did they holster their guns or whatever they do with their guns?

[00:13:13] Speaker 03:
When he was over the fence, they holstered their guns and handcuffed him, and he was under arrest.

[00:13:18] Speaker 05:
As soon as he came over the fence?

[00:13:19] Speaker 03:
That's the indication, yes.

[00:13:21] Speaker 05:
His feet land on the driveway side, and they put their guns away.

[00:13:28] Speaker 03:
The record isn't that detailed, but that appears to be the situation. That appears to be what happened. Yes.

[00:13:33] Speaker 00:
Well, this is an unusual case in the sense that... Now, you would concede if they had shot him as he was going over the fence, and he's not pointing a gun at them or whatever, that you wouldn't have that... we'd probably be having a trial on that because they hadn't seen a weapon and he's using his hands in the questions. But here it wasn't a question of whether they were going to shoot him.

[00:14:05] Speaker 00:
They didn't shoot him. The question was to take him into custody, what are they allowed to do for their safety before they can ascertain whether he has any weapons on his person or not. you know, anything along those lines, right? Yes, Your Honor. So he had run from the police previously too, right, a few weeks before? Correct, from a traffic stop. Okay.

[00:14:33] Speaker 05:
All right. Let me ask you another question.

[00:14:40] Speaker 05:
Is it your position that, that a reasonable jury on these facts could find a constitutional violation, but that really what's in play here is that the officers are entitled to qualified immunity because the relevant case law was not clearly established on it. It didn't sort of fall within these kinds of parameters.

[00:15:04] Speaker 03:
It's our position that the officers are entitled to qualify immunity on both prongs because a jury could not find that their use of force was unreasonable, especially in light of cases like Mueller v. Mania and Rotelli from the U.S. Supreme Court saying that officers are entitled to hold guns even on non-suspects in search areas to maintain control. We even have that Houck case from a district court that was decided last year that said that there was no case that found excessive force.

[00:15:39] Speaker 03:
No court has found excessive force was used because officers temporarily pointed their guns while securing a residence in the execution of a warrant, Houck v. United States, Eastern District of Pennsylvania, 2025.

[00:15:52] Speaker 03:
Off the orchard, I'm not going to even try to pronounce that.

[00:15:56] Speaker 05:
Let me ask you this.

[00:16:00] Speaker 05:
If we agreed with you on the second prong, we could just assume that there was a constitutional violation and move on to the second prong or not even say anything about the constitutional violation.

[00:16:08] Speaker 03:
Correct. Pearson v. Callahan.

[00:16:13] Speaker 05:
Or if we decided on the first prong, then we wouldn't have to say anything about the second. Under the Supreme Court's guidance, we can decide both issues or we can decide one or the other, correct? Correct.

[00:16:23] Speaker 05:
Okay.

[00:16:24] Speaker 00:
All right. Thank you. We've used all your time and more. You didn't say what you wanted. What was your aspirational rebuttal?

[00:16:32] Speaker 03:
Three minutes.

[00:16:33] Speaker 00:
Okay. When I'm going to do this, I'm going to give you two because we used up all your time. Okay.

[00:16:39] Speaker 00:
If we have any additional questions, I'll give you two minutes for rebuttal. Okay? Thank you, Your Honor.

[00:16:44] Speaker 00:
All right. We'll hear from, I'm not sure, is Mr. Bowe going first? Okay. So that would be Mr. Fairbanks is going first. Good morning.

[00:16:55] Speaker 00:
Please state your appearance for the record. And I believe you plan to use five minutes. Is that correct?

[00:17:01] Speaker 01:
Yes, Your Honor.

[00:17:01] Speaker 00:
All right. Thank you.

[00:17:04] Speaker 01:
Good morning. It may please the court. My name is Carlos Fairbanks, and I'm a certified law student under the supervision of Peter Afrasiabi. My partner, Victor Bal, discussed the clearly established prong of qualified immunity. I will address the question of excessive force.

[00:17:17] Speaker 01:
In that vein, this court should affirm in this court's ruling that a reasonable jury could find that defendant officers' conduct in pointing their guns at Medrano's head was excessive.

[00:17:26] Speaker 01:
To account for their actions, defendant officers rely on a series of inferences, but those inferences must be weighed against the facts. And those facts, when taken in the light most favorable to Medrano, are the following. That at least seven officers were dispatched for a bench warrant, not for a violent offense, but for a failure to appear. That when they arrived, there was no indication Medrano was armed.

[00:17:47] Speaker 05:
It was a failure to appear on what kind of crime?

[00:17:50] Speaker 01:
A drug sentencing hearing, Your Honor.

[00:17:53] Speaker 01:
And when they arrived... And in the...

[00:17:56] Speaker 05:
cleats system, is that what it's called here in Los Angeles? Clets or whatever it's called. I can't remember what I used to refer to it as, but it showed what the offense was that he failed to appear on, correct?

[00:18:10] Speaker 01:
Yes, Your Honor.

[00:18:11] Speaker 05:
Right. So they knew that he'd failed to appear on a serious drug offense.

[00:18:16] Speaker 01:
Yes, Your Honor. Okay. Nevertheless, when they arrived...

[00:18:21] Speaker 01:
They do not find that he was armed, violent, or noncompliant.

[00:18:25] Speaker 00:
Mr. Fairbanks, here's my concern, and I sort of gave you that I was going to ask you this going into it.

[00:18:33] Speaker 00:
If we leave this to stand, basically this tells officers that they can basically never pull their gun when they're making an arrest and they're going into things they don't know if someone's armed. A child could be armed for all of that. that they don't know that. They know the guy ran from the police. They know his mother's called the police. They know that he failed to appear in the CLETS system. That warrant is there. And they can't see everything, and they know there's a dog over there.

[00:19:09] Speaker 00:
Why should an officer have to not be able to be prepared to use force until such time that they're absolutely sure that the person isn't armed, and they've got the situation controlled.

[00:19:26] Speaker 01:
Your Honor, officers certainly can make reasonable inferences, but ultimately those inferences must harmonize with the facts, and you recount a number of past incidents.

[00:19:34] Speaker 00:
But you and I sit behind desks, and the worst thing that's going to happen is our pencil's going to break, and it's going to go at us. Officers have to go out in a bad area of town where they can't see everything, and they And these are people that have already come in contact with the law. And the way that it is wants to tell them, hey, you can't be concerned about your safety and you can't make essentially a felony arrest until such time that you know you're safe.

[00:20:03] Speaker 00:
That's what this stands for. So tell me why that's right. Why every time an officer's that now officers just can't draw their guns unless they're sure someone's armed.

[00:20:13] Speaker 01:
Well, Your Honor, it's not a matter simply of them drawing their guns. It's a matter of them employing the threat of deadly force.

[00:20:19] Speaker 00:
Well, but that's drawing your gun. Anytime someone points a gun at you, you can die, and they shouldn't. So that is deadly force. You're right.

[00:20:27] Speaker 01:
Well, Your Honor, for instance, the court in Green v. City in County of San Francisco acknowledged that when utilizing their firearms, officers can use a low-ready position, meaning they can draw their firearms but keep them low as opposed to pointing them directly at a suspect.

[00:20:41] Speaker 04:
Would that have worked in this situation where there's a fence between them?

[00:20:47] Speaker 01:
Potentially, Your Honor. I mean, it's possible they could have shot through the fence if they felt the need to. But more importantly, what was the actual... Go ahead. What was the actual threat posed by Madrona?

[00:20:57] Speaker 00:
Did the officers know whether he's armed or not?

[00:21:00] Speaker 01:
They did not know.

[00:21:00] Speaker 00:
Okay.

[00:21:01] Speaker 05:
What could they see when they were approaching the fence? They saw him in the backyard. That fence looked pretty tall. It looked like about at least six feet. So how could they see over the fence? I don't quite understand.

[00:21:14] Speaker 01:
Well, they were able to see through these metal sheets in the fence.

[00:21:17] Speaker 05:
So they saw him back there?

[00:21:18] Speaker 01:
Yes, they were able to identify him.

[00:21:20] Speaker 05:
And did they testify at their depositions that he was carrying anything?

[00:21:23] Speaker 01:
No, his hands were visible throughout the incident.

[00:21:25] Speaker 05:
Okay, and when he got to the fence, how did he get over the fence?

[00:21:29] Speaker 01:
He climbed over the fence.

[00:21:31] Speaker 05:
How?

[00:21:32] Speaker 01:
With his hands.

[00:21:34] Speaker 05:
And then what, he jumped over?

[00:21:36] Speaker 01:
Yes.

[00:21:38] Speaker 05:
And he fell down, did he land, how did he land?

[00:21:42] Speaker 01:
The record isn't clear, but presumably on his feet, at which point he was handcuffed and arrested. Right as he landed? Yes.

[00:21:51] Speaker 05:
When did they holster their guns or put them away?

[00:21:54] Speaker 01:
The record isn't clear, but presumably it was once he had been effectively handcuffed and detained.

[00:22:00] Speaker 05:
So this is all about what the concern is, is that he was pointing his gun.

[00:22:06] Speaker 05:
The officers were pointing their guns, assuming it was bows, at him while he was coming over the fence? Yes, Your Honor.

[00:22:17] Speaker 00:
Do you have any case that says an officer has to wait until someone draws a gun before they can draw theirs?

[00:22:24] Speaker 01:
No, Your Honor, but there must be objective factors to believe that there is a safety risk.

[00:22:29] Speaker 00:
Well, what if he had something in his pants?

[00:22:33] Speaker 00:
Do they have to wait for him to pull it out of his pants before they can draw? They might have to shoot him, but on the other hand, This case stands for the proposition they can't draw their guns in anticipation that someone will pull a gun and they don't know whether they're armed or not.

[00:22:50] Speaker 01:
Your Honor, that could be true of any suspect.

[00:22:52] Speaker 00:
In this case, you had a compliant one. It can, but in this situation, would you agree with me that this case stands for the proposition that you can only draw your gun when someone's pointing a gun at you?

[00:23:08] Speaker 01:
No, Your Honor.

[00:23:10] Speaker 00:
Okay. What does it stand for, the way it is right now? What proposition does it stand for?

[00:23:15] Speaker 01:
Much like in Thompson v. Rahr, that pointing guns at compliant individuals who are presenting no threat is a constitutional violation.

[00:23:22] Speaker 00:
In Thompson, was the person shot?

[00:23:24] Speaker 01:
No.

[00:23:26] Speaker 00:
Okay. And what was the pointing at the person in Thompson?

[00:23:30] Speaker 01:
Police officers pointed a gun at an individual who had been compliant with their instructions up to that point.

[00:23:35] Speaker 04:
Wasn't it also a point-blank range? Here, is there an allegation of the same?

[00:23:42] Speaker 01:
There is a difference in terms of distance.

[00:23:45] Speaker 04:
That makes some difference, don't you think? I mean, the terror of having a gun pointed right at your face this way, I assume, is magnified.

[00:23:52] Speaker 01:
Certainly, but as he compiled their instructions and approached, their guns were still trained on him.

[00:23:58] Speaker 00:
Okay, do we have any additional questions?

[00:24:02] Speaker 00:
Okay, well, we're two minutes over. Thank you for your comments and your argument here. All right, we'll hear from Mr. Bough.

[00:24:17] Speaker 00:
Good morning.

[00:24:18] Speaker 02:
Good morning, Your Honors. May it please the court. My name is Victor Bell, certified law student under supervision of Peter Afrasiabi.

[00:24:28] Speaker 02:
I'll be discussing second prong, clearly established law.

[00:24:33] Speaker 02:
On the second prong, the district court got it correct in finding that the law was clearly established.

[00:24:40] Speaker 02:
However, we submit that Robinson v. Solano County is the most close factual analog to the facts of this case as to give officers reasonable notice, fair notice that their conduct would be unconstitutional. Well, they had a fairly good view of Mr. Robinson as he came down.

[00:24:58] Speaker 05:
That's correct, Your Honor. His shirt was unbuttoned, right?

[00:25:04] Speaker 02:
That's correct. And his hands were up?

[00:25:08] Speaker 02:
That's correct, and he was also out in the open.

[00:25:12] Speaker 02:
But similarly here, Mr. Medrano, officers were able to observe Mr. Medrano prior to making any contact. The fence was there, correct? That's correct.

[00:25:27] Speaker 05:
Do we know what one could see through the fence? I mean, how clear was the fence? Yes.

[00:25:35] Speaker 05:
It wasn't just a plain old chain link fence without the plastic or metal shards that you sometimes see in a chain link fence. This one had the plastic or whatever it was, wood or whatever.

[00:25:48] Speaker 02:
That's correct, Your Honor. It was a chain link fence. So I imagine they didn't have a pretty good view, right?

[00:25:53] Speaker 02:
Your Honor, from the facts, I think we read them to have the officers at or near the fence so they could peer over it, presumably. officers declared that they could just observe Medrano, and they were able to see the pit bull dog presumably also at foot level of Medrano. So in this case, officers on approach, before Medrano even knew that they were there, they were able to see Medrano, presumably his entire person.

[00:26:25] Speaker 00:
Okay, do we have to, what would you have had the officers do, and did the officers, does it have to be 20-20 retro? No.

[00:26:35] Speaker 02:
No, Your Honor.

[00:26:36] Speaker 00:
So how should the officers have made this felony stop? They have a felony warrant out. They know the guy's run. They know the guy's mother has said he was acting crazy. And they can't see very well. And they've got a dog on the other side. So what should they have done?

[00:26:53] Speaker 00:
What were they entitled to do, in your view, of the case?

[00:26:57] Speaker 02:
I mean, for the purposes of this appeal, we're considering guns drawn to the head.

[00:27:05] Speaker 00:
But as far as we know, there's no... But hypothetically, I'm asking you hypothetical, and we do that. So how should they have made this stop? I know you probably don't have a lot of experience making a felony stop, but tell me. Should they have just had their hand on their weapon? Is that what they should have done? Or...

[00:27:23] Speaker 00:
been ready or what would be allowable under the circumstances as you see the law? What does the clearly established law allow them to do under these circumstances?

[00:27:34] Speaker 02:
Well, we haven't found any cases holding excessive force for guns just held in the low ready position or even for a protective sweep. In fact, I think we cite to the Bell Gardens Police Manual that is consistent with that kind of guidance.

[00:27:52] Speaker 00:
Okay, but you're saying it's not okay, that the officers should have known that what they did was not okay. So what would be okay? If we publish on this, what should we say? What would have been okay for these officers in this stop?

[00:28:06] Speaker 02:
Sure, what would not be excessive, we would say, is officers having weapons at the low ready position.

[00:28:14] Speaker 02:
But once they're at the head, which is the boundary, the zone of excessiveness that was circumscribed by Robinson versus Solano County.

[00:28:23] Speaker 02:
Guns anywhere else, that would be an open question.

[00:28:26] Speaker 00:
So they could have had them, if they were low ready, you wouldn't be here?

[00:28:30] Speaker 02:
No, Your Honor.

[00:28:31] Speaker 00:
Okay.

[00:28:36] Speaker 05:
So you said that the closest analog was Robinson, right?

[00:28:42] Speaker 02:
Correct, Your Honor.

[00:28:43] Speaker 05:
Okay. In Robinson, if I remember correctly, as the officers approached Mr. Robinson as he was walking down the steps, they had their guns out like this, right? Yes, that's correct, Your Honor. And it's pretty clear in that case that there was just a very short distance between the officers' weapons and Mr. Robinson, correct? That's correct, Your Honor. Okay. So I gather what the concern here is, is that they had their guns up when he was on the other side of the fence and still had them out and pointing as he came over the fence.

[00:29:18] Speaker 05:
Is that correct? That's correct, Your Honor.

[00:29:21] Speaker 05:
But how close were they to him at that time? From everything I read, I mean, he didn't testify that they were, like, two to three feet.

[00:29:32] Speaker 02:
Sure. On the facts of the case...

[00:29:37] Speaker 02:
Excerpts of record, 109.

[00:29:39] Speaker 02:
Medrano says officers were as close as 10 feet initially. At the first point, the first thing Medrano saw was officers' gun at his head and officers' declarations.

[00:29:54] Speaker 05:
But how could it be, as I think Judge Bumate or Judge Callahan said, or counsel said, I mean, how could that be? He just perceived it to be at his head. Is that correct? That's correct. They're 10 feet away, and he's on the other side of the fence, and they have their guns out.

[00:30:12] Speaker 02:
That's correct.

[00:30:13] Speaker 05:
So he perceives it that they're pointing their weapons at his head.

[00:30:22] Speaker 02:
That's correct, Your Honor.

[00:30:25] Speaker 02:
At about 10 feet, as close as 10 feet at first contact, and we...

[00:30:31] Speaker 02:
rather analog to Robinson, which on the facts of page 1010, Robinson, the gun was as close at a range of three to six feet in Robinson. So we're talking about a difference about force.

[00:30:46] Speaker 04:
So my problem with allying with Robinson is that it says there's only one circumstance that favored the use of force in that case, the fact that the plaintiff had used a shotgun previously. Here you have to concede that there's more factors that support use of force, right?

[00:31:02] Speaker 02:
Your Honor, we disagree on that.

[00:31:05] Speaker 04:
Well, okay, it was at night. There was a fence between them. There was a dog present. It was in a dangerous neighborhood. He had previously fled, and he was accused of a felony drug possession, correct?

[00:31:18] Speaker 04:
All those are factors in favor of use of force. None of that was present in Robinson.

[00:31:24] Speaker 02:
That's true, Your Honor, but we submit that Robinson, the conduct that led to the arrest, the discharge of a firearm... And Mr. Robinson was roaming the streets with his firearm.

[00:31:38] Speaker 02:
That posed an even higher level of threat. Someone who had actually discharged the firearm.

[00:31:44] Speaker 04:
But it was a shotgun also, right, with Robinson? And so they knew he didn't have a shotgun.

[00:31:49] Speaker 02:
That's correct, but...

[00:31:55] Speaker 02:
That's assuming that Robinson could only ever have one firearm. So here, I think appellants argue that Medrano could be armed and that he was not visibly carrying a firearm. But similarly, Robinson, even though he had also not been searched, I think we can't have it both ways in that Robinson would be unarmed.

[00:32:19] Speaker 02:
You don't think that they had a better view of Robinson under the circumstances?

[00:32:26] Speaker 02:
I would say under the facts on the record, in both cases, officers were able to see the entire person of the individual prior to pointing firearms at the head.

[00:32:39] Speaker 00:
All right. Unless you have further questions, we've taken you over as well. So we've been... So I will give... We took...

[00:32:49] Speaker 00:
You're about five minutes over, so I'll give you three minutes for rebuttal, all right, for the appellant. Thank you, Your Honors. Thank you.

[00:33:00] Speaker 00:
I guess what I'm most curious about here is we've talked about we know under Callahan, which is not related to me, that you can decide under the first or the second prong. Is it important?

[00:33:15] Speaker 00:
to decide this under the first prong as opposed to just jumping over that and going into the second prong. I want your perspective on that.

[00:33:25] Speaker 03:
Your Honor, you can decide this on the second prong because even if this court were to make new law on the first prong and say that officers in this situation cannot point their guns at people's head, that would be new law in 2026 that would not be known to the officers in June 2018 and they would be entitled to qualified immunity on the second prong.

[00:33:43] Speaker 00:
Well, I find it hard to believe, though, that you would want us, if you represent the officers, to make new law that they can never have guns drawn in this situation. I mean, do you want that new law?

[00:33:57] Speaker 03:
Absolutely not, Your Honor. I'd like the court to recognize the existing law as set forth in the U.S. Supreme Court cases that officers can use their guns to hold people at gunpoint to control the situation, even non-suspects, when executing a warrant. And here, they reasonably believed they were executing a warrant, not just an...

[00:34:17] Speaker 03:
but an arrest warrant, a bench warrant for somebody suspected of a violent felony who was known to the police department and who had gang affiliations under situations.

[00:34:29] Speaker 05:
I mean, I gather you agree with Judge Callahan that if you read the district court's opinion, that this case stands for the proposition that a police officer can never draw their... gun as they're making a felony stop. I would, Your Honor. How do you... I'm interested in that. How do you draw that conclusion from this opinion on these facts? Because the district court focused on... An officer could always draw his gun and just keep it down, keep it ready to go.

[00:35:00] Speaker 03:
But the judgment as to whether it is necessary to only hold the gun at low ready or to aim it at the person who poses a substantial threat is something that an officer should have a discretion on. And in fact, that Bell Gardens provision that Mr. Fairfax pointed to, says that it's up to the officer's reasonable discretion as to whether to hold the gun.

[00:35:25] Speaker 05:
On the other hand, do you always want police officers to pull their weapons and have them ready to go and then in an instant they can pull the trigger and kill somebody?

[00:35:35] Speaker 03:
No, we don't want that always, but we do want a situation like this one where they're facing somebody who is facing charges of felony drug distribution and who fled from justice and who was cornered, possibly, and might act that way to have the guns ready just in case they're needed.

[00:35:54] Speaker 00:
Well, I'm going to assume, and I would hope, that everyone would like to go home that night, the defendant and the officers, so... that everyone would like to go home and no one gets shot. But I guess that I'm wondering is, does this stand for the proposition that you have to let someone get the jump on you where you can't be fully ready to engage someone that may be armed? Or do you have to either stay holstered? I mean, I don't know, is low ready?

[00:36:25] Speaker 00:
Do we micromanage officers and say you need to be low ready in that situation?

[00:36:32] Speaker 00:
I mean, I always get concerned. Like I said, I sit behind a desk, and the worst thing I have is an irate law clerk or a pencil flipping up in my face. So if I'm going to tell officers how to do their jobs, I want to make sure that I'm confident in that and what the law is.

[00:36:52] Speaker 03:
I agree completely, Your Honor, and that's why qualified immunity exists. So long as the constitutional point can be debated, even as we're debating it now, it shouldn't be taken as clearly establishing this officer can't do what the officer believes is necessary to protect themselves, protect the community, and keep this person from fleeing.

[00:37:14] Speaker 00:
Okay. I don't think we have any additional questions. Thank you, everyone, here for your argument, and I would like to say that everyone did a good job here today, and so when you're regular lawyers, you're welcome back. You were regular lawyers today. How's that? Thank you.

[00:37:34] Speaker 03:
Thank you, Your Honors.

[00:37:35] Speaker 00:
This matter will stand submitted.